'They have built a legal system without punishment': reflections on the use of amnesty in the South African transition

Abstract

The conditional amnesty process administered by the Truth and Reconciliation Commission was an innovative feature of the transition to democracy in South Africa, yet it remains relatively under-analysed in comparison with other aspects of the TRC’s work. Moreover, although the South African TRC has inspired a new generation of truth commissions in Africa and around the world, the amnesty process has never been repeated. This paper examines the context of the use of amnesty in South Africa and offers some critical reflections on the South African amnesty process, particularly in the context of the rise of international criminal law and the creation of the International Criminal Court. Noting that the demand for ‘amnesties for peace’ has not diminished, it argues that, although the South African amnesty process was in some respects flawed both in its conception and implementation, it merits consideration by other countries in transition and offers valuable lessons for the development of international legal policy.